This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, 'Legal Counsel', which has expertise mainly in commercial law, family law, labor law, land law, constitutional law, criminal law, and IPR.

Query

The workers of our establishment are planning to form a Collective Bargaining Agent (CBA) within the organisation. As management, we would like to know about the formation of a CBA and its functions under law(s).

Sirajul Alam, Dinajpur

Response

Thank you for your query. Pursuant to your query, firstly, it is important to understand that the formation and functions of Collective Bargaining Agent (CBA) come under the purview of the Bangladesh Labour Act, 2006 (hereinafter referred to as "BLA 2006") and the Bangladesh Labour Rules, 2015 (hereinafter referred to as "BLR 2015"). The right to collective bargain is considered as a fundamental right of the workers. By virtue of section 2(52) of the BLA, 2006 a CBA is essentially a trade union of an establishment, which acts as the agent of the workers for collective bargaining with the management in such establishment.

From the query, it is not clear whether your establishment already has any trade union of workers or not.  In case if there is already a trade union, the said union will automatically be considered as the CBA of your establishment. For an establishment having more than one trade unions, the unions shall, by way of nominating an election commissioner amongst themselves, initiate steps for election of the CBA. If the same is not the case, the Director General of Labour Department shall, upon application being made in this regard by the trade union or by the employer, hold a secret ballot, within a period of 120 days from the date of receipt of the said application, in order to determine as to which trade union shall be the CBA for the establishment.

A CBA's tenure is for 2 years in case of an establishment. Upon formation of the CBA as aforesaid, it shall be entitled to perform the following functions under section 202(24) of the BLA, 2006:

a. bargaining with the employer in matters of the state of joblessness, conditions of work or environment of work of the workers;

b. representing all or any of the workers in any proceeding;

c. giving notice, and declaring, a strike in accordance, with the provisions of the BLA, 2006;

d. nominating representatives of the workers in any welfare institution or provident fund and in the board of trustees of the workers' participation fund; and

e. conducting litigation on behalf of any individual worker or a group of workers subject to their approval.

Further, an employer or a CBA can opt to take assistance from a specialist in order to perform the respective activities.

It is common for any CBA to issue a 'charter of demand' to the management demanding certain rights, privileges and benefits in terms of their working conditions. Once a charter of demand is produced by the CBA, the management and the CBA, need to go through certain consecutive and clearly defined processesin order to reach a settlement. The process starts with mutual discussion and if the same is not settled then the matter is attempted to be resolved through conciliation. In case if the conciliation also fails, the matter is solved either through arbitration or through the labour court proceedings. Resolution of industrial dispute through the above stages is a crucially important task for both the management and the CBA for ensuring the continuity of smooth and healthy operation of the organisation.

The leaderships of both the CBA and the management of the organisation require high degree of professionalism, prudence, sense of relevance, mutual respect, openness, consideration about the overall and holistic betterments of the organisation, negotiation skill, legal knowledge, understanding of good market practices etc. in order to successfully end an industrial dispute. Once a CBA is formed, it shall arrange for training sessions for the executive committee members of the CBA and the management for better understanding of their respective roles and duties. 

Pertinently, the employer shall be required to allot an office room for the elected CBA in accordance with the establishment's infrastructure. Moreover, the room shall be in conformity with ventilation system and there shall be facility for workers to move conveniently in and outside the establishment. Moreover, the employer shall provide required number of office chairs, tables, cabinets, power supply, electric ceiling fans, lights, notice boards, etc. in the office room of CBA. It is imperative to mention that upon requests of the CBA, the employer shall deduct from the wages of the workers who are workers of the establishment and also part of that CBA union, such amount for the purpose of subscriptions to the fund of CBA union with the approval of every individual worker named in the demand statement furnished by CBA and shall keep the sum so deducted separately. Even members outside the CBA union can pay subscriptions by receipts. In this regard, the employer shall deposit the deducted sum as stated in the account of the CBA union concerned within next 15 days from the date of deduction. Although the law is silent on how this money shall be used, but it can be safely stated that this subscription money may be utilised by the CBA for covering their administrative, management and operational costs.